Yesterday, the Second Circuit found that the NSA’s bulk telephony metadata collection exceeds the statutory authorization of Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861). The case was on appeal from the Southern District of New York, where the lower court held in 2013 that Section 215 precludes judicial review, that the organizations bringing suit would not succeed on their statutory claim on the merits, and that Section 215 does not violate the First or Fourth Amendments to the Constitution. The Second Circuit vacated and partially remanded to the lower court on statutory grounds without reaching the constitutional questions. The court also denied plaintiffs’ request for a preliminary injunction shuttering the bulk telephony metadata collection in light of the upcoming sunset which would expire Section 215 on June 1, 2015.

BACKGROUND

As the Second Circuit explained, the bulk telephony metadata collection program was publicly revealed in June 2013 when The Guardian published one of the first articles based on information disclosed by Edward Snowden, including an order issued by the Foreign Intelligence Surveillance Court (FISC) directing Verizon to produce “call detail records, every day, on all telephone calls made through its systems or using its services where one or both ends of the call are located in the United States.” This “telephony metadata” includes details about the length of a call, the phone numbers calling and receiving the call, routing information that can convey information about a caller’s general location, and unique device identifiers. Metadata does not directly disclose the content of a communication, but the court emphasized that metadata of the quantity and quality at issue in this program is “often a proxy for content”.

Since the program was disclosed, there have been severallawsuits challenging its legality on statutory and constitutional grounds, as well as analysis and reports by the Privacy and Civil Liberties Oversight Board (the PCLOB), a bipartisan agency within the executive branch, which concluded that the program “was inconsistent with § 215, violated the Electronic Communications Privacy Act, and implicated privacy and First Amendment concerns.” Nonetheless, the program continued with only minor modifications, announced by the President in January 2014 and approved by the FISC in February 2014, based in part on recommendations from the Review Group on Intelligence and Communications Technologies established by the President.

STANDING

The Second Circuit upheld the lower court’s finding that plaintiffs (the American Civil Liberties Union, the ACLU Foundation, the New York Civil Liberties Union, and the NYCLU Foundation) had standing to bring this case. The government argued that plaintiffs “lack standing because they have not demonstrated that any of the metadata associated with them have been or will be actually reviewed by the government, and have not otherwise identified an injury that is sufficiently concrete or imminent to confer standing.” The court rejected this argument, finding that the collection of plaintiffs’ metadata under the unlawful program would constitute a Fourth Amendment seizure which could be challenged as a “concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.” Further, the court held that even if plaintiffs’ metadata is not necessarily queried as a selector, when the government queries its vast database of telephony metadata,

its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

Although the court did not address the merits of plaintiffs’ First Amendment claim, it did find that the plaintiff organizations have standing to bring such a claim on the basis of the potential “chilling effect” on plaintiffs’ members or donors and their interests in maintaining the privacy of their associations and contacts.

JUDICIAL REVIEW

The lower court held that the program authorized pursuant to Section 215 was precluded from judicial review, but after thoroughly reviewing the government’s arguments (“bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence”), the Second Circuit found that plaintiffs have a valid cause of action against the government under the Administrative Procedure Act (APA). The court reiterated that Congress has the ability to limit the remedies available under the APA, but “at most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non‐issue.”

RELEVANCE

The heart of the court’s opinion deals with the question of “relevance”. As background, the statute provides that the government may apply for “an order requiring the production of any tangible things . . . for an investigation . . . to protect against international terrorism or clandestine intelligence activities.” While this standard could be read as a grant of unlimited authority, the court explained that the basic requirements for metadata collection under § 215 [] are simply that the records be relevant to an authorized investigation (other than a threat assessment).”

The government argued that “relevance” is a generous standard, particularly in the analogous context of grand jury and administrative subpoenas. This notion was supported by the legislative history, which suggests that Congress intended to provide the government with similar broad investigative powers to those traditionally used in grand jury and criminal investigations. However, in grand jury investigations the question of whether records demanded by a subpoena are “relevant” to a proceeding is constrained by the subject matter of the investigation. The court found this to be a critical distinction, as “here, however. . . [t]he records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” Thus, “relevance” according to the government is an indirect concept and the records are “’relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant.”

The court firmly rejected this interpretation as unprecedented and unwarranted, explaining that the limitless collection authorized by such a reading would be novel in terms of both the quantity and quality of data. Reviewing cases raised by the government, the court found that “all examples of which we are aware are bounded either by the facts of the investigation or by a finite time limitation. The telephone metadata program requires that the phone companies turn over records on an ‘ongoing daily basis’ – with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.”

Turning to the plain language of the statute, the court further found that this interpretation of relevance does not comport with the requirement that the documents requested pursuant to a Section 215 order are “relevant to an authorized investigation (other than a threat assessment)”. The court highlighted that the government had not identified any specific investigations to which the bulk collection is relevant, but rather had only provided examples in which the already-collected metadata was queried for contact chaining of known terrorists. Then, citing to the PCLOB’s explanation of the government’s practice in applying for orders under Section 215, the court summarized the government’s argument that “there is only one enormous ‘anti-terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort. . . . The government’s approach essentially reads the ‘authorized investigation’ language out of the statute.” Finally, although the statute does not define “threat assessment” (and the legislative history provides little insight), the court reviewed the Attorney General’s Guidelines for Domestic FBI Operations and the FBI Domestic Investigations and Operations Guide to find that:

In limiting the use of § 215 to “investigations” rather than “threat assessments,” then, Congress clearly meant to prevent § 215 orders from being issued where the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation, sought to conduct an inquiry in order to identify a potential threat in advance. . . The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry.

Finally, the court rejected the government’s interpretation of “relevance” in the context of the bulk telephony metadata collection since it would drastically expand the term as it is construed for purposes of subpoenas and other national security-related statutes. The court found that “Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower. ‘Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not . . . hide elephants in mouseholes.’ Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001). The language of § 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding of the term ‘relevant to an authorized investigation.’” However, the court again emphasized that “if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”

CONSTITUTIONAL CONCERNS

Following the judicial canon of constitutional avoidance, the Second Circuit was able to decide this case on statutory grounds, but nonetheless addressed some of the “potentially vexing issues” raised by plaintiffs’ Fourth Amendment claim. The government had argued that Fourth Amendment requirements are not implicated by the metadata collection because plaintiffs have no privacy rights in these records, which were willingly disclosed to a third party (the telephone companies). Conversely, plaintiffs argued that the seizure of these records (and their eventual search) violated their reasonable expectation of privacy, and accordingly a warrantless search without probable cause would violate their Fourth Amendment rights.

The court acknowledged the challenge as of “one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy,” but underscored the need for a Congressional judgment as to what is a reasonable expectation of privacy in modern circumstances. Specifically with regard to Section 215, the court stressed that the current legislative proposals could significantly affect the constitutional analysis.

FISA ADVOCATE

Circuit Judge Robert Sack filed a concurring opinion to address concerns about the role of the courts, specifically the FISC, in reconciling “the never completely reconcilable tension between the individual’s interest in privacy and right to civil liberties and the government’s duty to protect American lives and property.” Judge Sack explained that transparency and a properly functioning adversary system are two of the fundamental characteristics of ordinary Article III courts, and while he recognized that the FISC must maintain more secrecy than ordinary Article III courts in order to operate, the absence of a robust adversary system may be hindering the FISC’s effectiveness. Judge Sack recounted the Pentagon Papers litigation as instructive here; the court held both public and ex parte hearings, but during all stages of litigation the parties both had the assistance of highly competent counsel. He cited to current legislative proposals which would provide the FISC with “improved access to relevant expertise” by means of a designated advocate or panel of advisory experts, and noted that “the participation of an adversary to the government at some point in the FISC’s proceedings could similarly provide a significant benefit to that court. . . .And at least in some cases it may be that its decision-making would be improved by the presence of counsel opposing the government’s assertions before the court.”

WHAT NOW?

This timing of this opinion is significant for the current congressional discussions about reauthorizing or allowing provisions of the USA PATRIOT Act to expire on June 1. If Congress reauthorizes Section 215 as it is currently written, the government will likely have to stop the bulk telephony metadata collection unless the decision is vacated en banc or reviewed by the U.S. Supreme Court. If Congress wants to continue the bulk collection, it will need to affirmatively pass revised legislation, which would likely need to include additional privacy protections to avoid the “potentially vexing” Fourth Amendment issues highlighted by the Second Circuit. Whether Congress can take any affirmative action in the short time remaining before Section 215 expires remains to be seen.